Women in Theology

What Would We Do After Abortion Became Illegal?

In my experience, the reason most Americans want abortion, at least in some circumstances, to remain legal is not primarily because they do not respect the life of the unborn or even because they are morally comfortable with abortion, but instead because most Americans are uncomfortable with what it would mean to enforce the criminalization of abortion.

If those wishing to make abortion illegal wish to have success, they need to think about and publicly speak about how we as a society will enforce abortion laws. After all, if the vast majority of people can do something illegal without getting punished for it, then that something can not really said to be illegal.

So, what should the punishments be for women who seek abortions and the doctors who help them? If abortion is the moral and material equivalent to murder, then those who seek and perform abortions should be punished like murderers. In the U.S., murder in the first degree is defined as “the killing of one human being by another human being with malice aforethought.” If a fetus is a human person in the same way that the already born are, and women and doctors are human persons, and clearly abortion is a case of malice aforethought, then abortion would fit the legal as well as moral definition of murder. In the U.S., murder in the first degree is typically punished by life in prison or, in some states and cases, the death penalty.

Certainly, there are some who think that women who seek abortions should receive such sentences, but, in my experience, the vast majority of even the most passionate advocates of the life of the unborn would not support such a punishment. And even less would the “American public in general” support this. In other words, most people, even those who think that abortion is wrong, do not think that it should be punished like murder.

Another option of course would be to treat abortion like a form of manslaughter, punishing it with a lighter sentence, say of 5-10 years?

Maybe those seeking to make abortion illegal will conclude that the woman and doctor should not serve any time in prison. However, at a minimum, a mother who is legally responsible for the death of a child often loses custody of her other children. It would seem that even if a woman convicted of the crime of abortion should not face jail time, she should at least lose custody of her existing children (if she has any) much in the way a woman who abuses her children or neglects them as a result of drug addiction does.

We must also think about how we will apprehend and prosecute the guilty. How will we get a warrant to search for evidence of an abortion? Even after successfully acquiring a warrant to “search” an alleged aborter’s body, can we scientifically distinguish between a miscarriage and an abortion?

The answers to these questions are not just morally important, (in my opinion, and I am willing to be convinced otherwise, if you truly think that abortion is tantamount to the killing of a toddler, then you must think that those who seek abortions should, in an ideal world, be punished as severely as we punish those who murder children), but also they are politically and strategically necessary. If the “pro-life movement” wants to succeed in making abortion illegal, they need to explain not just why abortion is wrong, but also what a society in which abortion is illegal will look like.

Another thing that advocates of the criminalization of abortion have to account for is what is morally acceptable action for citizens to undertake themselves if abortion is tantamount to murder. I don’t see how anyone except strict pacifists could argue that it would be morally wrong to use violence to prevent abortions from happening if abortions are nothing less than murder.

It seems to me that if something can be criminalized and declared to be a form of murder there’s no way to deny that it is morally licit to use violence to prevent it if it is in one’s ability to do so, again unless one is a strict pacifist. Logically, despite their claims to the contrary, killers of abortionists are operating precisely within the ethics of the proponents of criminalizing abortion.

Hello Halden,
Yes. I think you make a great point and I agree.
For example, people often compare the killers of abortion providers with John Brown and say how even though we don’t like slavery or abortion we feel ambivalent about John Brown. Well, dismissing for a moment that it is heinous and egregious to compare or equate abortion and slavery, I think our society’s ambivalence about John Brown has more to do with our being socialized to sympathize with white supremacy as a system and less with our squeamishness over using violence to pursue justice…especially given the fact that there is a near universal consensus that “the troops” are our heroes.

“This is not a matter of being pro-choice or pro-life. This is a matter of living in a country that is more fascinated with the machinations of Stonewall Jackson, than Sojourner Truth. One reason that black people grimace at invocations of their history to justify the struggle du jour, is because, very often, the invokers really don’t know what the fuck they are talking about. Put bluntly they have no deep knowledge of the black struggle, and are not seeking any. For them, black history is a rhetorical device, employed to pummel their ideological foes, and then promptly discarded for more appropriate instruments.”

elsewhere he explains why the analogy between slavery and abortion is inaccurate, but here he sums up why it is heinous.

I tend to hear references to “holocaust” more often than to slavery. There’s also the idea of black genocide in light of the extent to which abortion isn’t a demographic-blind problem (a point that is in agreement, though opposite in intention, with abortion rights folks who point out that outlawing abortion will put a heavier burden on the mothers who have less resources in the first place).

Good point, Halden. William Saletan of Slate.com, who is one of the most interesting thinkers in this area, argued the same thing after George Tiller was murdered: http://www.slate.com/id/2219537/

And I’m glad you pointed out that condemning Tiller only really works if you’re a strict pacifist; I agree. But as argued in my post yesterday, judging from voting statistics, most of the pro-life demographic is anything but strictly pacifist.

Strict pacifism (I prefer gospel nonviolence) wouldn’t be able to accept criminalization of abortion because it entails the use of force. When all violence is understood to be illegitimate the basis of governance is threatened and the cross is the result.

I hope I never have to see what how this would be worked out in real life. It would be a tragic world in which doctors and ministers like myself felt compelled to enable illegal abortions as a form of moral protest.

Oh I really would like to hear a response to this (excellent) post from those who do advocate the criminalization of abortion. Somebody call James Dobson! I think that the point made in this post ultimately highlights how our moral intuitions do not align with the view that abortion is equivalent to the termination of human life. After all, does anyone really think that mothers who have committed abortion should be tossed into a prison cell for a very long time?

Maybe we can look at societies that do now criminalize abortion – how do they handle infractions? I saw, though, a study that says abortion rates are similar in countries that allow abortion and those that don’t. All I can think is that criminalizing abortion would make everything worse for women.

I’m pretty much a pacifist. While John Brown had a righteous cause, I don’t agree with some of his actions – he colluded (perhaps participated) in the cold-blooded murder of individuals, not just the accidental deaths of collateral damage in “battle”. Killing people to save people seems like the ends justifying the means, the trolley thought experiment gone crazy.

Perhaps something like euthanasia law might provide more fertile ground for constructive comparison than murder? I’m not at all knowledgeable of any of it, but it seems like there are distinctions between sentences for these two offenses in at least some jurisdictions. The question of the status of the mother v. the abortionist in such cases is also worth asking.

The most sensible place to look for legal response to illegal abortion, though, would seem to be… our own laws concerning illegal abortion. I know the moral dilemma of abortion as “killing” and what that entails for theoretically-consistent pro-life folks gets discussed a lot, but what seems more relevant for legal considerations is, say, what sort of responses we currently have in place for illegal late-term or IDX abortions. We don’t currently treat abortion as a capital offense in these cases, so I imagine we wouldn’t in a potential case where all abortion procedures are illegal.

A number of Canadian pro-life activists were asked the same question, and–though most of the answers fell into the range of jail-time for the woman and abortionist–one respondent compared it to suicide (this would be expanding on Evan’s first suggestion above). Her answer seems to make some sense, so I’ll copy and paste with the link (though it also makes me squeamish about ideas of brainwashing… in any case, somewhat interesting).

Theresa Smyth
Executive director,
Aid to Women

Until 1972, suicide and attempted suicide were illegal in Canada. The law reflected the belief that life is worth living and that suicide was unthinkable. Abortion is roughly analogous. It includes the killing of one innocent victim; the tremendous self-harm for the victim-perpetrators; and the loss to the family, peers and society of the missing victim. More than wanting to end a life, people involved in abortion are seeking an end to their pain. They need our support. And we need to ensure that further harm is prevented, particularly to other children within the family, born or yet-to-be-born. The state can impose treatment on someone who is a danger to himself or others.

Currently, people involved in abortion reflect not only interior pain, but a cultural disease. Unconsciously aware that something is deeply wrong, too many unhealed women are already “sending themselves” to jail for (other) crimes committed after abortion. By the time we succeed in re-criminalization, there will have been so much healing in our culture that abortion will once again be unthinkable. Thus, someone who committed abortion would be personally aberrant – most likely, insane. [I am not quite sure what she means here, other than the assumption that re-criminalization will have entailed a mass conversion of heart.]

Assuming that we enacted penalties for multiple contributors (the crime’s victim-perpetrators/observer-accessories), the mother’s “sentencing” could normally be through the mental health system. Most cases could even be “statused-out” so that prosecution was deferred pending treatment through a quality post-abortion healing program and treatment-compliant women could end up without a criminal record.

Thanks for this, Michael.
First of all, I’m not really sure if the analogy between abortion and suicide holds–at least not as this author is describing it. Whether we like it or not, it is simply not true that abortion always results in “a loss to the family and peers.” I think comparing the grief communities and families feel (or may not feel at all) to the grief communities and families feel after a loved one commits suicide is insensitive and unfair. There is also the difference that the person who commits suicide is no longer around to be punished, so it doesn’t really matter whether or not the criminalization of suicide can be enforced while in the case of abortion the woman almost always survives the procedure. For this reason, feasibility of enforcement does matter.

Second of all, I also take issue with her belief that laws can change only after hearts do. We saw with the ending of slavery and the passing of civil rights laws that sometimes laws need to change so that hearts will change; and, in other cases, even if changing the law does not change hearts, the law needs to be changed anyways.

Third of all, we don’t need to read Foucault to recall the history of the male-dominated field of pyschology’s tendency to control and pathologize femininity. Think of the roots of the word hysteria, for example. I would also add that even putting a person through the mental health field is still a willful detention, very much akin to incarceration. In many cases, being involuntarily committed also carries a stigma similar to that carried by those who have served jail time. Also, I wonder what we would if the committed woman never came to repent her actions, would we keep her for life? Would we medicate her?

Fourth of all, if we use this for abortion, why don’t we use it for all crimes?

Fifth of all, other acts whose immorality we have consensus on, like murder or child molestation or adultery, are not committed only by the insane so why does this author think it could ever be any different with abortion? If non-mentally ill people can murder the already born even though we all agree that murder is wrong, why does she think that even in a society in which we “all” agree that abortion is wrong only the mentally ill will seek abortions?

Either way, I am really grateful for your willingness to engage these questions seriously and commit to the nitty gritty work of finding a solution!

“Third of all, we don’t need to read Foucault to recall the history of the male-dominated field of pyschology’s tendency to control and pathologize femininity.”

A million times yes, Katie. This is something that I think a lot of pro-life activists (not you, Michael, I’m speaking in general) don’t seem to understand, especially when they respond to charges of misogyny/sexism by saying that, on the contrary, they *do* care about women, because “abortion hurts women” and they want to stop it. I don’t doubt their sincerity, but it upsets me that they seem unaware that they are participating in a loooong-lived discourse of men controlling women through the rhetoric of medicalization and “protecting.”

Just to be clear: I was giving this as one example of a proposed solution, not necessarily one that I totally agree with. So I’ll briefly respond to some of your points.

I agree with you on most of your first point, but the author’s description does seem to highlight an intuitive half-truth in the comparison: that most women make this decision under unusual duress that significantly–if not completely–diminishes the legal culpability for their action. I think this is a pretty solid point, one which anti-abortion advocates don’t adequately take into account in their rhetoric.

I agree completely with your second point.

Regarding the third, I think the punishment is temporary counseling, not long-term “commitment.” This is where the suicide analogy breaks down. The counseling would not be a prolonged suicide watch but more akin to post-abortion counseling given now. Once the counseling is over, there need be no criminal punishment or continued mental health monitoring for the woman. In other words, the punishment is temporary treatment, reducing the risk of long-term psychological abuse by the state. In that case, repeat offenders would be those who left the counseling to pursue the same mistake, and these would most likely be subject to criminal punishment.

Regarding your fourth point, I would point to the good response by the everdaythomist below about punishment for neonaticide. It seems to me that crimes regarding the specific and unique situation of pregnancy and childbirth deserve specific and unique punishments that–contra the rhetoric of murder–are not the same as those for homicide.

As to your fifth point, I don’t understand her logic here: as abortion seems to be present in many historical situations among the sane, I have little doubt that it will continue that way given free will.

Making abortion illegal in no way necessitates that vulnerable women will be prosecuted for procuring an illegal abortion. Every year, hundreds of women commit neonanticide, yet, few of them end up in prison for it. Observe the following observation from Steven Pinker:

Most observers sense the desperation that drives a woman to neonaticide. Prosecutors sometimes don’t prosecute; juries rarely convict; those found guilty almost never go to jail. Barbara Kirwin, a forensic psychologist, reports that in nearly 300 cases of women charged with neonaticide in the United States and Britain, no woman spent more than a night in jail. In Europe, the laws of several countries prescribed less-severe penalties for neonaticide than for adult homicides. The fascination with the Grossberg-Peterson case comes from the unusual threat of the death penalty. Even those in favor of capital punishment might shudder at the thought of two reportedly nice kids being strapped to gurneys and put to death.

If abortion was made illegal, women would have significant more difficulty procuring an abortion, and the number of abortions per year would go down. Doctors might be prosecuted for performing illegal abortions, but my bets are that women would not be.

Thanks everydaythomist that is helpful, but wouldn’t that still imply that abortion is not the moral equivalent of murder or the intentional killing of an already-born person? It just seems to be in tension with the claim that all life is equally valuable and equally sacred.

Even if illegal abortion rates returned to pre Roe v Wade levels, my understanding is there were still hundreds of thousands of abortion performed every year in this country. This is certainly much less than the millions that currently take place, but if people are arguing against abortion on the grounds that it is murder or morally equivalent to killing a 5 year old, then how could we let that take place? If we found out there were hundreds of thousands of women killing their children in cold blood, I think we’d want to do something about it, wouldn’t we?

And, I have no empirical evidence to back this up, but my gut is skeptical that criminalizing abortion at this stage would significantly reduce the number of abortions which actually take place. I agree that making abortion illegal would certainly make it more difficult to get one, but I disagree that that necessarily means many fewer abortions will take place. If you look at the data provided by commenter crystal, there is no direct relationship between legality and number of abortions. In fact, Uganda, a country in which abortion is illegal and contraception is hard to get, has a significantly higher abortion rate than the US. Clearly, I am not saying that the cases of US and Uganda are identical (for starters, it is easier to get contraception here), my only point is that I’m simply not sure if making abortion illegal, on its own, will be the type of magic bullet we hope it would be. I really think there would need to be harsh and stringent punishment.

I guess I’m also more skeptical that abortions rates would go back down to their pre-Roe levels. I have no empirical basis for that, but it’s just a feeling I have.

But–alongside the importance of abortion laws’ empirical effects–aren’t a country’s laws morally significant? There seems to be a moral difference between a country whose laws permit abortion and a country whose laws would prohibit abortion.

But doesn’t it get complicated if you think that when it’s illegal women are more likely to die, in addition to the abortion? I mean…what about it has to do with which lives are being privileged in the moral analysis? (I don’t know I’m just thinking “out loud”)

also, as a follow-up, I suspect that part of the reason we are so lenient to cases of neonaticide is that they are relatively infrequent. I think we might start to feel differently if there were as many cases of infanticide as they were abortions pre-Roe.

Even if illegal abortion rates returned to pre Roe v Wade levels, my understanding is there were still hundreds of thousands of abortion performed every year in this country. This is certainly much less than the millions that currently take place, but if people are arguing against abortion on the grounds that it is murder or morally equivalent to killing a 5 year old, then how could we let that take place? If we found out there were hundreds of thousands of women killing their children in cold blood, I think we’d want to do something about it, wouldn’t we?

Good points. First, I would say that just because we say abortion is murder does not mean that it is the moral equivalent of killing a five year old or other forms of murder for that matter. Intentions and circumstances need to be accounted for.

Second, intuitively, I have a lot of trouble understanding how you could say that abortion numbers would not go down with a reversal of Roe. Right now, an abortion is incredibly easy to get which is doubtless why we have over a million a year. I’m not saying a reversal of Roe is a magic bullet, but I do think you have to admit that hundreds of thousands of women (a lot of them poor or working class, busy, or simply law abiding) are NOT going to seek out an illegal abortion. Although, you might see a more responsible use of contraception with a reversal of Roe (not to mention a more widespread use of morning after,which you are already seeing).

Finally, if abortion were legalized, we would be forced as a society to figure out how to care for pregnant women and the children they carry rather than assuming that these women would abort when having a child were not expedient. Many women do not want to get an abortion and feel guilt and remorse afterwards, but also feel pressured to get an abortion (my experience with Project Rachel has been a powerful influence in this regard). I consider these women victims of an unjust law, a law that allows them, and tacitly encourages them, to kill their unborn. Many of them have good reasons–finances, school, work, etc.–but if they couldn’t get an abortion, then we would have to seriously come to terms in our society about how to provide for these women assuming they would be forced by law to carry their pregnancies to term.

I hear what you’re saying with your second point and I would concede that making it illegal would probably reduce the numbers…i guess I’m just not sure they would reduce them to a satisfying degree.

while i wish your third point were true, we already don’t care for the unwanted children we already have. we already don’t care for pregnant women with nowhere to go. so, i have almost no faith (and I think there is almost no evidence to assume) that if there suddenly showed up one million more children in foster care and one million more pregnant women in dire straights, we would somehow get our act together and take care of them. I don’t see why increasing the number of unwanted children would make us more likely to take care of them when we could continue doing what we currently do, which is hiding them away in the foster system, the ghetto, the streets, and the prison.

we don’t take care of the marginalized because we are selfish; making the problem bigger won’t make us less selfish. in fact, it would probably give us greater incentive to be selfish.

also, our country is unusually anti welfare policies and anti government spending and government safety net. It’s much more likely that women who have children out of wedlock will be further demonized than they already are and their “irresponsibility” will continue to be cited as ample evidence not to “bail them out” with a “handout.”

also, just to clarify: I intended this post to be primarily about political and rhetorical strategy. I was trying to explain why I think the “pro-life movement” (defined as those who want abortion to be illegal) has not had much success or at least not as much success as they would like.

Whose to say that one million more children will end up in foster care? Many women who have abortions want to, and probably would, keep their children. One million women with more children on their hands do create a powerful lobbying force for more equitable maternity leave laws. Even those who were put up for adoption could be a force for good. in this country, adoption is very expensive and involves long waits and lots of anxiety. Maybe with more kids available, parents who are desperate to adopt domestically would have an easier time.

That aside, you are right that our society is too selfish to care for the unwanted. But that is not an ethical argument for terminating the lives of those unwanted ones. Otherwise, we might as well go back to Buck v. Bell and sterilize by force all those women who are too poor and half-witted to take care of their children.

Not sure where you’re coming from on this, but isn’t the difficulty, on the part of prolifers, in articulating punishment just another way of indicating the legitimacy of the agency to choose whether to abort / bring to term? In other words, it seems to me that any punishment would imply there is no legitimacy to the choice; the inability to commit to a punishment witnesses to an ultimate sense that there _is_ something legitimate about having / making that choice. That is: Are we really willing to punish a woman who chooses to abort? I certainly am not, but the reason for my unwillingness here is simple, namely that I think she has the right / power to choose. (And the only way around this would be to make of the pregnant woman an “innocent victim” who, loosely speaking, had no choice but to make the supposedly wrong choice to abort — a sort of “benevolent patriarchy.”)

I’m still not sure why an articulation of punishment for abortion is being talked about as if it hasn’t been realized yet. There are illegal abortive procedures in the US already, and the legal consequences in these case are spelled out. This should surely offer us a clue to how earlier-term abortions should/would be treated in law were they to become illegal.

Even if we didn’t have these examples, though, I’m not sure why ambiguity regarding the nature of appropriate punishment says anything about abortion’s (or anything else’s) legitimacy under the law. “Punishment” strikes me as an extremely versatile and ever-changing aspect of law. Are we to think that rape is a legitimate action simply because not all articulations of punishment for it are uniform?

Evan, thanks for the response — my point was concerning the general unwillingness on the part of prolifers to declare or even articulate punishment. My point wasn’t that punishments lack uniformity (as you say is the case with rape), but that they are lacking on the whole (as proposals regarding earlier-term abortions).

I would just assume that since pro-life folks have been involved with standing legislation on illegal abortion, your question has already been answered… or do you think that a currently-illegal later-term abortion holds much different status for a pro-life person than a currently-legal-earlier term one? That is, do you really see pro-life people acting much differently than they have the past number of decades in legislating punishment for abortion?

I also think it’s a dodging of my point to isolate “earlier term” abortion now, when yesterday you were talking simply about “abortion” and a lack of response to it. My point in bringing up the current illegal state of abortions on this post wasn’t to shift gears and only talk about earlier term abortions. Katie has asked, “What would we do after abortion became illegal?”, and I’m saying that right now some abortions are legal and other abortions are illegal. If you’re trying to assert that pro-life folks lack an articulation of punishment for abortion, you can’t just first fail to take into account the punishments that are already articulated in law for abortion, and then bracket those cases after they’ve been brought up, as if they are irrelevant to further pro-life efforts to make other sorts of abortion illegal. The whole point of pro-life efforts here is to say that earlier-term abortions should not be distinguished from later-term abortions in law. Don’t the laws concerning illegal abortion already carry with them an articulation of punishment? Why are you saying that this is lacking?

Evan, yes, I presumed a distinction between early and later term abortions. Obviously that’s an important distinction, given that current law protects one and prohibits the other! It is the early-term abortion that’s in question, and i don’t think you can just extrapolate or whatever from the later- to the earlier-term, i.e. from the uncontroversial to the controversial.

In any case, I’m an opponent of the prolife position so perhaps I’m underinformed here, but it doesn’t seem to me that advocates of the prolife position spend much time talking about enacting punishment against women who abort. _That_ is the phenomenon I was addressing.

I’m not sure it is just the earlier-term abortions that are in question… or at least, if that’s all that everyone’s been talking about, the language has been pretty imprecise insofar as people have just been speaking of “abortion” in general. It seems to me that if one wants to get to the heart of how pro-life people feel about appropriate punishment for abortion, you’d want to take into account all sorts of abortions that they’re opposed to… it’s not as if pro-life people cease to believe that late-term abortion should be prohibited and punished once it is prohibited and punished (this is where I don’t get the relevance of your controversial/uncontroversial distinction… why it matter at all for the current discussion whether something is controversial?)

So surely the currently illegal abortions are relevant, even if we are only talking about currently legal abortions. In this case, though, why do you think it’s any more of a stretch to extrapolate from late-term to earlier-term abortion for reflection upon punishment? Surely it’s less of a leap than extrapolating from murder, manslaughter, or drug addiction the way that others have, right?

I also think it’s worth questioning what point you’re trying to make more generally. Katie, in closing her post, spoke clearly of pro-life folks needing to consider all of this if they’re going to be politically successful. I’m not sure how true this is… surely situations could be imagined of moral reform movements where the vanguard moves ahead with progressive impulses and only later considers the nitty-gritty details (and even broad-brushed structural aspects!) of the newly created situation. But her point is well-taken, and I think it’s perfectly true as far as it goes. I certainly wouldn’t deny that there is a good deal of simplistic and even ignorant conceptions of legal and moral justification in the pro-life movement, and that it would benefit greatly from a serious consideration of what sorts of legal response abortion might require in our society.

But you wonder whether the indeterminacy Katie identifies is “just another way of indicating the legitimacy of the agency to choose whether to abort / bring to term”. This seems at once a stronger idea and also a more vague one. You’re not merely drawing attention to a weakness or ambiguity in the pro-life movement’s political work, rather you’re suggesting that the ambiguity is an argument against the pro-life stance itself.

But are you trying to suggest that pro-life people who don’t have a clear sense of how abortion should be punished are operating under a sort of false-consciousness? This seems to make more sense, considering you talk about your own personal unwillingness and its connection with your [earlier-term, or comprehensive?] abortion rights stance. But couldn’t it just mean that pro-life people feel an internal struggle between the wrongness of aborting an unborn child and the difficulties that mothers go through in making such a choice? It seems unfair (and here I generalize about abortion rights people!) to argue that pro-life folks only believe in the sanctity of life from conception to birth but don’t care about safety nets, societal support, etc., and then turn around and fault the same pro-life people for hesitating to be “consistent” in punishing mothers who abort. To me, such hesitation concerning punishment indicates the very sort of compassion and support for born life that pro-life people are so often accused of dismissing, and not at all the false-consciousness that you seem to be suggesting. If the goal for abortion rights people is to be supportive of mothers and children, why on earth would they want to question pro-life “inconsistency” here? Doesn’t it suggest that pro-life people (if sometimes unconsciously or without acknowledgment) do indeed recognize that this is a complex, heart-wrenching moral problem where the well-being of the mother is just as central as that of the unborn child?

This is really the point that has made me most uncomfortable about this whole conversation. I know that the WIT authors have been interested in detailed theoretical moral discourse about abortion and other issues, and I don’t presume to have much to contribute to this aspect of the problem… all of it can be quite above my head. But on a practical level, I don’t see why what might be construed as inconsistency or indeterminacy in pro-life proposals for punishment should be seen as a bad thing or a weakness of some sort. Halden and Aric almost seemed to use it as leverage in an argument for pacifism above, and dbarber has used it as an indication of the moral legitimacy of abortion. I take it for granted that conflicting values in complex moral situations are going to lead to this sort of indeterminacy/inconsistency, and that it’s probably wisest to take pro-life people at their word when they talk about caring for families and not simply for fetuses as some sort of fetish. Insofar as a policy matter like punishment can’t really be got at by a sort of moral calculus but rather only by deliberation and practical considerations, I don’t see how seemingly odd or absent views on punishment in the pro-life movement suggest anything about their beliefs on abortion (or on force/violence in the case of Halden & Aric). In contrast, Katie’s suggestion about the strategic difficulties of this are worth considering, because they exist on the practical level and so seem to more easily accommodate the practical ambiguities of the pro-life movement concerning punishment.

Evan and dbarber,
I’m going to suggest that you guys place your convo on hold. I appreciate your participating in this blog, but it seems like you guys are at somewhat of an impasse…I fear you are simply repeating old points without saying something new. dbarber seems to say that he does not think the pro life has spent much time talking about the nuts and bolts of criminalization while Evan seems to disagree, saying that the prolife movement has talked about this a lot, and that, even if they hadn’t, it doesn’t really matter.

You guys already know what I think and I think you have both already contributed plenty to this convo. If you two would like to exchange emails to continue this in private, I can send each of you the other’s email via the blog email.

Argentina has one of the most stringent abortion laws in the Western world. In Argentina, abortion is illegal under all circumstances: yes, all circumstances; but by law, no prosecution may occur if the abortion occurs in the first three months. After that, there is no prosecution if a doctor provides a medical certificate showing the life of the mother was in danger. But otherwise, yes, the woman goes to prison, for rehabilitation: it is not a life sentence.

The purpose of making abortion illegal is not to punish the woman, but to set the tone in the society, to make it much more unacceptable, even unthinkable.

In Argentina, the law sets the tone.

The punishment is having to come to terms with the fact that you have killed your child. Yes, your baby, we hope, is in heaven, held close in the arms of God, as are all victims of murder.

My biggest logical quandary with talking about who should be punished and how is that people are punished as murderers for killing fetuses. (Scott Peterson). If you hit a woman who is pregnant while drunk driving and kill her baby you can, in many states, be charged with vehicular manslaugther.

Thus, the distinction, to me, seems to be one that is completely arbitrary. What is the substantive/ physical/ spiritual/ philosophical difference between the late Connor Peterson at 8 months and Connor Peterson at 2 months? Why would it have been a crime fo Laci Peterson to abort him at 8 months (and thus a crime for Scott Peterson to have killed him) but it would have been a constitutional right for Laci Peterson to kill him at 2 months? I have yet to hear an argument for why a person who is 2 months or 7 months or 10 weeks or 15 weeks is so dramatically different that one has rights and the other doesn’t. One can be considered a victim and the other is considered a “fetus.”

As far as when a baby is legally eligible to be aborted and when it is not, I find little more than “size” or “development” distinguishing. This is entirely problematic for me considering the issues in our own society with people who have not developed in the way we expect humans to: people with mental, phyiscal and debiltating psychological disabilities. The sort of cultural dismissiveness of an 8 week baby as a “fetus” merely because it is less developed than a baby at 9 months scares me in terms what we consider human and, more importantly, why we consider those things human. If development, size, brain functioning or even someone’s attachment to you can determine when you are considered human and when you are not, what does that say about babies who come to term and people who live entire lives with extremely limited mental and physical development?

Furthermore, the rationality of “choice” has always disturbed me. For anyone else to kill a first trimester baby is a crime, but a mother choosing to do it is not. So essentially a life is partially protected, but not protected from its mother. Naturally the pregnant mother is in a circumstance no one else is – namely, that she is the only one who is physically carrying the baby around. I once heard someone say that until it can breathe on its own it’s a parasite (having taken care of a little sister, kids are parasites long after birth). And so insofar as pregnancy actually bears on the mother’s health, life and lifestyle, it should seem, in a society where terminating fetuses is mostly legal, that only the mother should have that choice since, of course, the mother is the only one physically (though not emotionally) effected by her pregnancy. So even if you establish why a mother and no one else has the right to kill a baby, I still can’t understand why a mother does or does not have rights depending on her trimester. It’s never been adequately expained.

I would honestly like answers to these questions. I am mostly anti-abortion, but I think like many people I wouldn’t want a mother to die to save a baby (unless she wanted to) and I wouldn’t want a raped woman to be forced to carry a baby or a little girl. And I don’t want to valiantly campaign against abortion because I feel that it ignores, especially in poor communities, the kind of circumstances that lead to widespread unwanted pregnancy and thus, abortions. But these questions I’ve raised still trouble me. The most passionate and humanistic defenses of the right of choice (I would sign on, probably, to a more limited one but that of course raises a number of unsolvable problems about what counts as a good reason to get an abortion), have never shown me logically or otherwise why someone has rights at 7 months that they don’t at 1 and why mothers have choices to kill that others don’t.

Mary, I think that if we investigated criminal charges for attacking a pregnant woman and killing the fetus we would find that those kinds of laws are actually the result of anti-abortion efforts (At least, I know this has been talked about in classes I’ve been in, I’ve never done the leg-work myself). In thinking through some of these questions, though, I would recommend Tina Beattie’s article “Catholicism, Choice, and Consciousness: A Feminist Theological Perspective on Abortion” in International Journal of Public Theology from Volume 4, 2010. It’s the one piece I’ve read that really tries to take seriously all of the concerns you discuss here (and the article isn’t too long). However, one warning–she says at some point that the principle of double effect will address all of the cases that could arise if a woman’s life is at risk during pregnancy, and that’s not true (I suspect the PDE just isn’t as far reaching as she assumes it is). I’ve also heard, but have not read myself, that Lisa Cahill’s take on abortion in her book Theological Bioethics is pretty good.

I suppose one thing the law could do, theoretically, is treat the loss of a fetus under the category of bodily harm, like the loss of a limb or a bodily function at the hands of a hostile party. If those things are inflicted on someone involuntarily, that’s a big deal. You’re going to jail. But voluntary bodily modification, on the other hand, is legal.

A woman or girl can only become pregnant if she has ovaries, a uterus, and a vagina and can menstruate, which she can do that only if she is in a certain age/stage of development and has a sufficient ratio of fat to body mass to menstruate. She can then become pregnant whether or not she consents to sex – rape pregnancy is possible.
So making voluntary abortion illegal means necessarily forcing people to suffer having their bodily liberty constrained through discrimination against themon the basis of biological characteristics which they did not choose – i.e., physical disability to be impregnable.
I imagine that one result of criminalization of abortion will be a sharp increase in the number of educated single women who see heterosexual men as an intrinsic enemy and marriage as anathema.
More will focus increasingly on education and career and friendship with other women, choosing a path that leads to never producing children.
More will follow the eating patterns that lead to anorexia, because it can result in cessation of ovulation and menstruation. The anorexic female body will become increasingly fashionable despite all attempts to change that.
More married women will be inclined to divorce after they have the number of children they desire, increasing the divorce rate and number of single parent headed households.
More women will take self-defense classes so as to be prepared to kill any man who threatens them with rape if that is necessary to avoid an event that could lead to rape pregnancy.
Among these groups, feminism will flourish as never before.
And more women who are pregnant by rape will certainly commit suicide.
Of course, some women, especially those who are young, poor, uneducated, gullible, and not very intelligent will get pregnant because they will have so little capacity to protect themselves. They will increase the number of poor and not very intelligent people. And the lack of proper social welfare will insure that they and they offspring have shorter and more brutish lives.
A society that does not respect your right to equal liberty as a person deserves to learn why it ought to extend that in a firmly established way.
You can teach it that one reason is that it is possible, and in some cases very desirable, to reject sexual intercourse, marriage, and ultimately human sexuality in an extreme and permanent way. Perhaps only then will it understand you are simply saying, “Give me liberty or give me death.”